Prewitt v. Prewitt

• Citation: 122 P. 766,52 Colo. 522
• Parties: PREWITT v. PREWITT.
• Decision Date: 01 April 1912
• Court: Supreme Court of Colorado

122 P. 766

52 Colo. 522

PREWITT v. PREWITT.

Supreme Court of Colorado

April 1, 1912

Error to Arapahoe County Court; George W. Dunn, Judge.

Suit by Anna A. Prewitt against Francis E. Prewitt for divorce. There was a decree modifying the award of alimony, and plaintiff brings error. Motion to dismiss writ of error denied.

Melville Sackett & Calvert, of Denver, for plaintiff in error.

Charles W. Waterman and James A. Harris, both of Denver, for defendant in error.

MUSSER J.

On the 17th day of July, 1909, a decree of divorce was granted to Anna A. Prewitt, as plaintiff, against Francis E. Prewitt, as defendant, in the county court of Arapahoe county, and, at the same time, the defendant was ordered to pay to the plaintiff on that day the sum of $83.35, and a like sum on the 17th day of each and every succeeding month, as permanent alimony. On the 14th day of August, 1911, the plaintiff filed her petition in the action, asking for a modification of the decree for alimony, and that the defendant be ordered to pay her $100 per month for each and every month thereafter until the further order of the court. Thereafter the defendant filed a motion to strike the said petition of plaintiff from the files for various reasons, and that the decree for alimony be satisfied. Upon a hearing, the motion to strike the petition and to enter a satisfaction of the decree for alimony was sustained by the court on the 9th day of September, 1911, and on the same day the court considered a motion of plaintiff to vacate the satisfaction of the judgment; both parties being present and consenting to the consideration of the last motion at that time. This motion to vacate was denied by the court. Thereafter, in the month of September, 1911, the plaintiff sued out a writ of error from this court to review the action of the lower court in striking the petition for a modification of alimony and in entering the satisfaction of the judgment and denying the motion to vacate the same. The defendant in error filed a motion in this court to dismiss the writ of error for the reason that it was not sued out of this court within six months from the date of the original decree for divorce and alimony. This writ of error is sued out to review a judgment or order with respect to alimony, payable periodically in the future.

A court, granting a divorce and permanent alimony, has the power to modify the decree, relative to alimony payable in the future, as the changed circumstances of the parties may render it necessary and just. Stevens v. Stevens, 31 Colo 189, 72 P. 1061. It appears in that case, from the dissenting opinion, that more than six years after the judgment for divorce and alimony was rendered the defendant filed his petition, asking for a modification of the decree. To this petition, the plaintiff demurred; the defendant elected to stand by his petition, and it was dismissed. This court then reviewed the case on error, reversed the judgment of the lower court, remanded the cause, with directions to overrule the demurrer to the petition, and said: 'By virtue of the general equity powers of a court granting a divorce, as well as by virtue of the provision of section 9 of the divorce act (Session Laws 1893, p. 240), such court has the authority to modify the decree, relative to alimony payable in the future and the custody and control of minor children, as the changed circumstances of the parties may render necessary and just.'

Section 9 of the divorce act referred to was amended in 1907, and, as amended, is section 2118, Revised Statutes 1908. The section is the same as it was before the amendment, except that there is added a proviso that when a divorced woman remarries after obtaining a decree of divorce the court shall annul the provisions relative to alimony upon application of the divorced...